Breaking the Deadlock

by Richard A. Posner
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Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 1960

The outcome of Florida’s presidential election of 2000 is highly controversial for a number of reasons. In a contest in which Floridians were almost equally divided between the two main candidates, the confusing nature of many of the voting machines and ballots resulted in a significant number of votes not being counted, and many African Americans alleged that they were harassed and even prevented from voting. To make matters worse, both Republicans and Democrats accused the courts of abusing their powers and promoting partisan agendas. Republicans and conservatives asserted that the Florida Supreme Court failed to follow the intent of the law when it ordered a hand recount. Democrats and liberals were even more vociferous in their denunciations of the U.S. Supreme Court’s ruling in Bush v. Gore, which by a 5-4 margin suspended the recount and made it inevitable that Bush would be the next president.

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Although it is often said that history is the province of the winners, the writings about the election deadlock of 2000 have generally reflected the point of view of the losers. For example, lawyer and author Alan Dershowitz has published a book with the provocative title Supreme Injustice: How the High Court Hijacked Election 2000. Not to be outdone, another well-known lawyer and author, Vincent Bugliosi, asserted an even stronger thesis in his title, The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President. Both authors accuse the five justices of the majority of basing their ruling on an inapplicable constitutional provision and of serving as a surrogate for the Republican Party rather than acting as an impartial arbiter of the law.

Richard Posner’s Breaking the Deadlock, in contrast, presents a qualified and unenthusiastic defense of the Supreme Court’s ruling in Bush v. Gore. Posner, a conservative jurist and an advocate of judicial pragmatism, concedes that the Court’s “equal protection” rationale for the decision was inadequate, but he argues that a more cogent constitutional argument was available. He also concedes that a slight majority of Floridians probably went to the ballots with the intent of voting for Al Gore, although he emphasizes that the U.S. Constitution does not require that the president be selected by the will of the majority. Posner’s defense of Bush v. Gore is based primarily on a pragmatic consideration. The deadlocked election, according to his analysis, threatened to produce a bitter political and constitutional crisis that would have been more messy and divisive than the judicial settlement.

The book is organized into five chapters. The first chapter presents an overview of the process for electing presidents, including its history and ruling principles. Chapter 2 tells how the election was conducted in Florida on November 7, and explains the complications associated with various voting machines, especially the confusing design of the butterfly ballots and the problems with counting punch-card “chads” (small squares) not properly removed. Chapter 3 gives a narrative account of the eight major judicial decisions that grew out of the deadlocked Florida election. The fourth chapter critiques the legal arguments and behavior of the judges, lawyers, and politicians who participated in the five-week contest. The final chapter considers various proposals for electoral reform.

Posner’s analysis of Florida’s popular vote appears to be accurate and nonpartisan. Of the 6 million votes cast, there were some 60,000 undervotes (ballots lacking a properly designated vote for a candidate) and about 110,000 overvotes (ballots including votes for more than one candidate). When only the ballots not having any voter mistakes are tabulated, Florida’s election was almost a “statistical tie,” with Bush prevailing by less than four hundred votes. Citizens having limited education and limited voting experience were especially likely to make mistakes that invalidated their ballots, and these voters disproportionately favored the Democratic candidate. Posner observes that African American voters increased from 10 percent in 1996 to 16 percent in 2000, producing a large number of inexperienced voters, most of whom supported Gore. The confusing butterfly ballot of Palm Beach County, ironically designed by a Democratic official, probably took enough votes away from Gore to cost him the election. Several months after Breaking the Deadlock was published, a newspaper consortium that investigated the spoiled ballots announced results that generally agree with Posner’s conclusions.

Judge Posner maintains that the two key decisions of the Florida Supreme Court were “unreasonable” and misconstrued the state’s election code. The first of these decisions, issued on November 21, granted a twelve-day extension for the counties to their submit voting tallies, allowing many dimpled and hanging chads to be counted in a few pro-Democratic counties. Posner insists that the court made a “hash” of the code, which was designed, he says, to correct only tabulation errors and not voting errors. This issue, unfortunately, is debatable because of the ambiguous wording in the code. Posner is justified, however, in criticizing the court’s mistake of basing its ruling on the right to vote in the Florida Constitution. On December 4, the U.S. Supreme Court, in Bush v. Palm Beach County Canvassing Board, unanimously declared that Article II of the U.S. Constitution specifies that state legislatures shall determine the manner for choosing presidential electors, and instructed the Florida Supreme Court to clarify how its decision had been consistent with legislative prerogatives.

Posner observes that the Florida court “dithered.” On December 8, without directly responding to the higher court’s inquiry, it ordered a hand recount of approximately 42,000 undervotes throughout the state, and it instructed county officials to consider the “intent of the voters” in deciding how to count the ballots. This time, however, the Florida Court claimed that its order was based on the state’s election code, and it quoted from precedents of other state courts with similar legislation. Since punch-card machines tended to be located in largely Democratic precincts, Gore and his supporters hoped that the recount would give him at least the two hundred additional votes he needed to win. The next day, however, the U.S. Supreme Court surprised the nation when it halted the recount and scheduled oral arguments for December 11.

On December 12, the highest Court issued the two controversial rulings of Bush v. Gore. First, the Court held, by a 7-2 margin, that the recount order was inconsistent with the equal protection clause because it did not provide for consistency in the counting of ballots. Secondly, by a narrow 5-4 vote, it held that the recount would have to stop because there was insufficient time to conduct a recount according to constitutional procedures. The five-justice majority explained that federal law required states to choose their electors by December 12 in order to assure a “safe harbor,” meaning that the state’s choice of electors would not be challenged. Because of this federal law, the Court inferred that Florida’s legislature had intended to require a deadline of December 12. The four dissenters disagreed and argued that there still might be time for a recount before the electoral college voted on December 18. If this deadline was not met, they maintained that “political controversies” should be decided by elected legislators.

Like almost all students of constitutional law, Posner finds the Court’s application of the equal protection clause unpersuasive for a number of reasons. He rightly explains that the use of different methods for counting votes has been the norm throughout the country’s history, and that differences among electoral districts are not obviously unfair so long as consistent rules are used within each district. The Court’s usage of equal protection, moreover, appeared to contradict its earlier opinion on December 4, which had suggested that Article II gave state legislatures almost complete discretion in deciding methods for deciding electoral college votes. It appeared arbitrary to require that the state court’s order provide equal protection, while there was no such requirement on the legislation that the court was interpreting. Democrats were especially infuriated by Justice Antonin Scalia’s statement that the ruling would probably not serve as a precedent in future cases, which appeared strange in view of the Court’s traditional role in establishing legal precedents. Posner acknowledges that the three most conservative justices likely joined the equal protection rationale simply because there was no other legal justification for the ruling that they could convince at least two other justices to join.

Posner prefers the Article II approach that Chief Justice Rehnquist utilized in his concurring opinion, and he suggests that the chief justice might have strengthened his opinion by arguing that Article II prohibits judicial involvement in the selection of electors except when expressly authorized to do so by the state legislature. However, such a theory appears opportunistic and is almost entirely lacking in precedents; there is no reason to think that it would have commanded a majority of the justices.

In the event the U.S. Supreme Court had not stopped the recount, Posner speculates about a number of almost disastrous contingencies that might have occurred. The Florida legislature might have selected its own slate of electors, and the Florida Supreme Court might have overturned the legislative choices. If Congress had decided not to count Florida’s electoral vote, then the election might have been decided by the House of Representatives. If this had produced a “rancorous struggle,” Posner describes an unlikely scenario of Lawrence Summers, the secretary of treasury, becoming acting president for a period of time. The prospects of such eventualities, however, appear rather overstated. The Constitution, moreover, authorizes Congress to decide which electoral votes to accept, and there are the precedents of the congressional settlements of 1824 and 1876. It is not at all clear that these settlements were more divisive than the way in which the presidential election of 2000 was decided.

Judicial pragmatism, as defined by Posner, means that judges should compare the consequences of different decisions, and that the one having “the better consequences for society is the one to be preferred.” There are a number of problems with Posner’s theory that judges should emphasize practical consequences rather than legal principles. In the first place, the choice of “better consequences” frequently involves choices among aesthetic values, economic benefits, and moral standards; many people are skeptical about judges’ qualifications to make such decisions for society. Also, it is one thing to assess the direct and short-term consequences of a particular decision, but it is much more difficult to anticipate its secondary and long-term consequences. Posner, moreover, uses a double standard in applying his pragmatism. He overlooks the U.S. Supreme Court’s questionable interpretations on the basis of consequences, but he denounces the Florida Supreme Court for interpretations that are not more disputable.

In order to improve the process for electing presidents, Posner suggests the desirability of four specific reforms. First, the U.S. Constitution should be amended to require that the electors of each state cast their vote for the winner of the popular vote, which would eliminate the possibility of “faithless electors.” A proposed second amendment would require the popular vote in each state to be determined in the manner directed by legislative statute enacted before the election, which would give the U.S. Supreme Court clear authority to resolve disputed elections. Thirdly, federal election statutes should be amended to make the safe-harbor date the final deadline for the states to select their electors, and if a state failed to meet the deadline, its electors would not be counted in the final tally. Finally, punch-card ballots should be phased out and replaced with electronic scanning machines, which are less confusing. Whatever the flaws in Posner’s analysis of the election, these four suggestions are eminently reasonable.

Sources for Further Study

The Economist 360 (August 4, 2001): 70.

Library Journal 126 (September 1, 2001): 208.

National Journal 33 (September 8, 2001): 2764.

National Review 53 (September 3, 2001): 589.

The New Leader 84 (September, 2001): 15.

The New York Times, July 15, 2001, p. E11.

Publishers Weekly 248 (July 30, 2001): 69.

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